Vaughn, Sr. v. Wegman et al

Filing 49

FINDINGS and RECOMMENDATIONS to dismiss Defendant, Bowman pursuant to Rule 4(M) re 18 , 19 , 20 , 26 , 34 , 35 , 36 signed by Magistrate Judge Jennifer L. Thurston on 3/21/2018. Referred to Judge Lawrence J. O'Neill; Objections to F & R's due within 21-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAY LEE VAUGHN, SR.,

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Plaintiff,

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v.

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WEGMAN, et al.,

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Case No. 1:15-cv-01902-LJO-JLT (PC)
FINDINGS AND RECOMMENDATION
TO DISMISS DEFENDANT BOWMAN
PURSUANT TO RULE 4(M)
(Docs. 18, 19, 20, 26, 34, 35, 36)

Defendants.

21-DAY DEADLINE

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I.

FINDINGS

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A.

Procedural History

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The United States Marshals Service has repeatedly attempted service on Defendant

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Bowman -- most recently using the last known address and phone number defense counsel

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obtained from the CDCR but was unable to complete it. (Doc. 35.) The unexecuted summons

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indicates that Defendant Bowman left the state in 2015 and that the phone number provided has

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been disconnected. (Id.) Thus, on November 13, 2017, Plaintiff was provided a final opportunity

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to provide additional information as to where Defendant Bowman may be located so that service

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might be accomplished. (Doc. 36.) Rather than provide further logistical information, Plaintiff

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filed a writ of mandamus1 seeking an order compelling the CDCR to produce information and the

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Plaintiff’s request for a writ of mandamus is denied by concurrently issued order.

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forwarding address of Defendant Bowman. (Doc. 37.) It thus appears that Plaintiff has no further

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information to provide with which to locate Defendant Bowman for service such that Defendant

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Bowman should be dismissed pursuant to Federal Rule of Civil Procedure 4(m).

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B.

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Rule 4(m) of the Federal Rules of Civil Procedure provides:

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Legal Standard

If a defendant is not served within 120 days after the complaint is filed, the
court - on motion or on its own after notice to the plaintiff - must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.

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In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court,

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shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). “[A]n

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incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal

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for service of the summons and complaint and [he] should not be penalized by having his action

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dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to

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perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations

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and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995).

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“So long as the prisoner has furnished the information necessary to identify the defendant, the

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marshal’s failure to effect service is automatically good cause. . . .” Walker, 14 F.3d at 1422

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(internal quotations and citation omitted). However, where a pro se plaintiff fails to provide the

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Marshal with accurate and sufficient information to effect service of the summons and complaint,

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the Court’s sua sponte dismissal of the unserved defendant is appropriate. Walker, 14 F.3d at

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1421-22.

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C.

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The Marshal’s Office has exhausted the avenues available to it in attempting to locate

Analysis

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Defendant Bowman for service. Walker, 14 F.3d at 1421-22. This action has been pending for

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over two years and the dispositive motion filing deadline for all parties in the action is

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approaching on March 30, 2018. (Doc. 25.) Plaintiff’s time for identifying and serving

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Defendant Bowman has been extended well beyond the 120 days from the filing of the First

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Complaint, on May 2, 2016, as allowed in Rule 4(m). (Doc. 12.)

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While good cause initially existed to allow extension beyond the 120 day service deadline

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of Rule 4(m), there is no good cause to extend the time for service of Defendant Bowman any

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further. It is Plaintiff’s obligation to provide information necessary to identify and locate a given

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defendant. This Plaintiff has not done and apparently admits that he is unable to do. Good cause

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does not exist to extend the time for service of the operative complaint in this action on Defendant

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Bowman any further.

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II.

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CONCLUSION
Plaintiff has failed and is unable to provide sufficient information upon which to locate

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Defendant Bowman for service of a summons in this action. Good cause does not exist to grant

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further extension. Fed. R. Civ. P. 4(m). Accordingly, the Court RECOMMENDS that Defendant

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Bowman and all claims against him be dismissed without prejudice from this action.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 21

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Failure to file objections within the specified time may result

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in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. Nov. 18,

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 21, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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